Industry Expresses Its Feelings—Loudly—at Cal/OSHA Meeting

LOS ANGELES—If one word could be said to capsulize the feelings of the nearly 100 adult performers, agents, producers and supporters who attended today's meeting of the Cal/OSHA Advisory Subcomittee on Control Measures—aka the "Condom Commission"—it would be "anger." Another possibility is "dismay."

"I'm going to be the bad guy and say what everybody else in the industry that's here is thinking," stated director Eli Cross near the end of the hearing. "You people are at the fulcrum of being able to actually help or hurt. The industry has not been the Wild West, much as you might like to imagine it has. If you go in the direction you are plainly going, that is what it will become. What you are proposing will simply not happen.

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"I've been doing this for 21 years," Cross continued. "This was an underground industry; it will go back to being an underground industry, if you go in the direction you are going, proposing barriers in place of testing, rather than simply mandating testing and letting us go on making a living, doing what we are doing. Mandate two-week testing; mandate that producers pay for it; great, terrific. Barriers will not happen. You will be endangering health, not protecting it. It's that simple. Because the business will continue, and it will continue underground."

In summation, Cross stated emphatically, "If you actually want to help as you have stated, if you actually want to protect the people in this industry as you have stated, and if your goal is not to put the adult industry out of business in California, which is what most of us believe, you need to take a look at testing rather than barriers, because barriers will not happen; it's that simple."

Cross's comments were greeted with applause, but Gold and her fellow CalOSHA workers seemed unmoved.

Senior Safety Engineer Deborah Gold, who moderated the hearing, set the tone early when she announced, "The purpose of this meeting is not to engage in a lot of general discussion. ... We recognize there's disagreement here." However, it's likely that neither she nor her fellow employees at the table—attorney Amy Martin, engineer Peter Reilly and standards board liaison Marley Hart—were prepared for just how much disagreement there was.

The tenor the meeting was to take became clear early on when attorney Paul Cambria, representing Vivid Entertainment, attempted to discuss the report issued by epidemiologist Lawrence S. Mayer, who had concluded that the figures for infection rates within the industry, provided by LA County Public Health officials Robert Kim-Farley and Peter Kerndt, were severely flawed.

"This isn't the right meeting for this," Martin stated flatly.

Other topics that were quickly declared off-limits: the questions of whether adult performers were all employees (and therefore subject to regulation under the Cal/OSHA guidelines) or independent contractors that were beyond the laws' direct reach, and also whether the rules under discussion would apply equally to such disciplines as mixed martial arts, pro boxing and wrestling, where blood is commonly spilled, or kissing and other intimate contact and exchange of fluids in mainstream movies.

The only topic that was up for discussion, as far as CalOSHA was concerned, was the 17-page draft proposal which had been sent out several weeks earlier with the notice of today's meeting. The proposal was an amendment to Section 5193 of the California Health Code titled "Sexually transmitted infections in the adult entertainment industry," and essentially reinforced what Martin was careful to point out several times during the day: that condoms and other barrier protections were already the law in California (and everywhere else, she later added, citing federal OSHA regulations), and that the current proposal for the most part simply added and/or explained requirements that "employers" had to implement in order to avoid severe fines by Cal/OSHA for non-compliance.

According to the meeting agenda, the discussion of the draft was limited to just five items—definitions, control measures, alternate measures, medical services and recordkeeping—but even that list proved too long, with adult industry attendees arguing with statements by Gold and Martin as well as some in the draft itself, and demanding explanations of why they should abide by what they deemed to be arbitrary rules when they neither wanted to do so nor could see any benefit from the rules over the testing regime that had been put in place by AIM, and which was, with slight variations, to be used again by the Adult Production Health & Safety Services (APHSS) system proposed by Free Speech Coalition.

Still, the Cal/OSHA officials pressed on, with Riley asking for discussion on four particular definitions within the draft proposal: "adult entertainment," "barrier," "exposure incident" and "consortium PLHCP," which dealt with how physicians or other licensed health care professionals (PLHCP) might band together to provide health care services to a group of employers.

Cambria quickly raised the issue that by the newly proposed amendment to the law referring to the "adult entertainment industry," the regulations were therefore content based—a suggestion that Gold quickly denied.

"You say that it's not content-based, but obviously the definition is 'adult entertainment,'" Cambria explained. "It seems to me the only way this could be fair and appropriate would be if it identifies activities, no matter where they occur, no matter what the content of the occurrence is, that may lead to the exposures you're concerned about regulating. It seems to me it wouldn't be a matter of categorizing it as 'adult'; it would simply look at the activities and say, 'These activities are covered by these rules.' Otherwise, it absolutely is based on content."

But perhaps the term that sparked the most debate was "barrier," since Cal/OSHA takes the position that a barrier can only be a physical device such as a condom, dental dam, rubber gloves or face shield, while several industry advocates supported the concept that STD testing could be just as effective, as evidenced by the findings in Dr. Mayer's report ... which had been barred from discussion. Moreover, Mark Roy McGrath of AIDS Healthcare Foundation (AHF) stated that the idea that testing was a form of "barrier protection" was "insulting to the medical community"—which provoked Nina Hartley later to attempt to call AHF to task for being partly responsible for the bankruptcy and closure of AIM—another topic that was quickly ruled out of bounds.

"I don't know how we're going to create a place for performers to feel safe and to be safe with what we're doing here," Hartley pleaded. "I don't know how this is going to go forth. I'm very upset, and I'm worried for my friends, my colleagues, myself, my family. As a sex worker, I feel, after 27 years, that I'm experiencing sex-worker bias, no matter how much anybody may say otherwise, and that as a minority within a minority, we are marginalized and no one here can tell us how we can feel safe to work."

Hartley's comments were greeted with much applause.

The question of who fits the definition of an adult "producer" provoked much discussion, with Evil Angel general manager Christian Mann asking to limit the definition in the draft proposal.

"I don't know whether or not that person editing or combining material somehow changes their definition of producer for purposes of what we're doing here," Mann commented. "I'm also concerned about the idea that a producer is defined as somebody who is an employer who also finances or arranges, because I might be an employer, and at the same time, I might be a person who does not employ the individuals performing in the movie. This is a really big, broad issue and needs a lot of tightening up."

Further attempts to refine the definition of "producer" took the meeting up to the lunch hour, and after after the crowd returned—now about half the size of the morning session—Gold tried to explain how the new proposed regulation actually simplified and shortened the requirements of section 5193, particularly as it involved the disposal of medical waste, since porn sets rarely produce sharp objects that might have become contaminated.

She then moved on to discuss "Attachment A" to the draft proposal, which would, in certain circumstances, allow oral sex to be performed without a condom or dental dam. However, most of the adult industry attendees saw little purpose in the exception, since it would require that they undergo much of the same testing they had previously undergone at AIM, as well as completing a vaccination series to protect against Hepatitis A and B and HPV, and undergoing a physical examination for signs of sexually transmitted infections—all within two weeks of performing the blowjob or pussy-licking.

Performer Danny Wylde brought up the issue of whether the health code could legally require that a performer get tested before engaging in on-screen oral sex, to which Martin later replied that if the performer declined to be tested, he or she could always perform the scene using barrier protection. Wylde noted that he had done four condom scenes this year, and a condom broke in one of them, leading him to state that at least for him, condoms had a 25 percent failure rate.

Agent Derek Hay also pointed out that the new regulation would require such testing every two weeks—double the frequency at which performers currently test—which would mean double the cost to the performer. Oral scenes, however, pay so poorly that for most it probably wouldn't be worth the cost.

As the discussion of Attachment A continued, it became clear that Gold was frustrated by the many objections to the proposal, the attempts to discuss issues not on the agenda, and the occasional personal attacks on one or another attendee.

"Hey; enough; stop it," she finally said, after having been interrupted several times by attendees disagreeing with her stated positions. "We're not going to have personal attacks; we're not going to have back-and-forths at each other. That's not what the purpose of this meeting is, okay? ... We are having a meeting to discuss how we may modify this regulation to hopefully make it more useful to you. If every time we go back to 'There's no risk' or 'We don't want you in our business,' or anything like that, then that's not what this meeting is for."

She said firmly, "There is already a standard. Most of you here have discussed how you work in a way that violates that standard. You're violating a California regulation which is the law of the state of California, and is the law in every other state in the United States of America. Now, we want to protect the health of the people in this industry, and we want to make it possible for you to continue to get paid to do your jobs to make a living. We have about an hour and 15 minutes, so we're either going to get your feedback on some changes that we're trying to make that we think might make things better. If you don't think they're going to make things better, you've said that and you're welcome to say them again. But if we're going to get through this agenda, then don't tell us there isn't an HIV risk, don't tell us there isn't an STD risk; let's not get into kitchen table epidemiology. You can tell the standards board that."

She continued, "If this proposal goes to the standards board, they'll have a public hearing, and you are welcome to come and talk about the lack of risk in this industry forever, but for right now, if we don't make it through the standard, here's what's going to happen: We're just going to go back and write the best thing we can and it will either be proposed or it won't. Now, we would really like your feedback on how this thing is written, and nobody else is going to talk about whether there's a risk of HIV in this industry because that's not what the meeting is for."

What became clear, however, was that the CalOSHA representatives had little understanding of either the mechanics of making an adult movie or the marketplace for movies made using the condoms and other barrier devices proposed in the regulations.

"There's one element that I think needs to be added into this discussion, which is that CalOSHA has chosen to approach adult performers as though they are actors, and that's simply not the case," said Eli Cross. "The better corollary is to stunt people or to professional athletes, which are people who have chosen to potentially risk their bodies and their health for no more noble purpose than the entertainment of others. I was a professional stuntman for three years, and I will tell you for a fact that you are allowed to wear protective equipment subject to the requirements of the project you are working on. Most stunt people get hurt through very simple gags [such as] fist-fights, often with actors who are not trained. I got hit in the face and had stitches for a fist-fight. I would not have been allowed to do that job wearing a mask because it was subject to the requirements of the shot. I fell down many sets of stairs. I would be wearing elbow pads, knee pads, but what I really needed was a helmet, the one thing I would never be allowed to wear because it would have wrecked the shot. Our industry depends on that shot. It really is that simple."

It was just this sort of disagreement—with positions like Cross's usually punctuated with loud applause from the other attendees—that characterized the rest of the meeting. One particularly sharp exchange occurred after Gold told the crowd about the reasoning behind the bloodborne pathogen plan: "We treat everybody as though they are infected with HIV, Hepatitis B, Hepatitis C, any bad thing, and therefore we require protection. That is the basis. It's called universal precautions. It's in this draft; it's in 5193; it's everywhere. That's the basis of OSHA regulation. ... The question that was posed at the medical advisory committee was, if you were using barrier protection for everything, what would you recommend? And they said a few things [including] enhanced post-exposure testing for chlamydia, gonorrhea and stuff, but they didn't say it was a necessity to have screening [aka regular testing]."

"I want to get this absolutely clear, because I think my common sense just curled up and died in a corner," Cross retorted later. "I understand that what CalOSHA is saying is that our old system of internal mandatory testing, which caught HIV and stopped it, was not good enough. Instead, what you are mandating is that anyone who comes to work, to work only with a condom, has to be allowed to work whether they have HIV or not, and then, if they infect someone, after the fact, or after the fact, if there is an exposure event, then we have to test them—and this is your common sense approach to our industry which has policed itself effectively for years; is that what I really understand you saying? You show up with a condom, and HIV or not, and we have to employ you? This is your solution? Honestly? I want it on the record: That is what this states; correct, in simple terms?"

"I'm going to say this, and I'm going to explain again, and then we're going to move on," Gold replied. "The gay industry, for example, a lot of the gay industry, doesn't test, uses condoms; that's how they stop HIV."

"But they have a 30 percent infectiion rate!" someone shouted.

"Without testing, how do you know?" another asked.

"Test! TEST!" many shouted—apparently unaware that sometime during the course of the afternoon, three security guards had entered the room and were standing at the back, ready to eject anyone who became too unruly. Fortunately, no one did.

"Okay; I have this to say about this meeting," Gold finally stated. "Because we are trying to work with this industry, with you people, with everybody, with the people who aren't here, to try to get a standard that works better for your industry. There are 80 people in this room, and I can't deal with every one of you. If people have come here to disrupt this meeting, we'll call it over, okay? Because we are here to have a rational discussion about how we can protect people in this industry. I don't want to be baited, I don't want to be misquoted, I don't want to have a bunch of people yelling at me, because I'm just a person making a salary. I care about this industry, I care about every single one of you. I care about you as performers, as people, as the public of California. I'm not here to be heckled by you, and whoever organized the heckling should be ashamed."

Of course, no one had organized the "heckling"; it was simply the spontaneous outcrying of people who saw their careers slipping away under the guise of "protection for their own good."

And so the discussion, with occasional interruptions, continued for another hour, and in the end, the agenda was not completed, and Gold announced that there would be no further subcommittee meetings; that any further objections the industry had to the proposed standards change would have to be taken up with the CalOSHA Standards Board if and when they entertained such a change. An unsatisfying conclusion, to be sure, but there it was.